U.S. BANK, N.A., as trustee for Merrill Lynch Mortgage Investors Trust, Mortgage… v. BDJ INVESTMENTS, LLC, a Nevada Limited Liability Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. BANK, N.A., as trustee for Merrill
Lynch Mortgage Investors Trust,
Mortgage Loan Asset Back Certificates
Series 2005-A8,
Plaintiff-Appellee,
v.
BDJ INVESTMENTS, LLC, a Nevada
Limited Liability Company,
Defendant-Appellant,
and
LONE MOUNTAIN QUARTETTE
COMMUNITY ASSOCIATION, a
Nevada Non-Profit Company,
Defendant.
No. 21-16669
D.C. No.
2:16-cv-00866-GMN-BNW
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 3 --

Submitted November 16, 2022**
San Jose, California
Before: SCHROEDER, GRABER, and FRIEDLAND, Circuit Judges.
BDJ Investments, LLC appeals the summary judgment entered in favor of
U.S. Bank, N.A. in an action arising from a nonjudicial foreclosure by a
homeowners’ association (“HOA”). The district court concluded that U.S. Bank
had demonstrated that tender of the amount of the HOA’s lien would have been
futile. On de novo review of the grant of summary judgment, Oswalt v. Resolute
Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011), we affirm. The district court did
not err by reaching a different result than did our court in CitiMortgage v. Corte
Madera Homeowners Ass’n, 962 F.3d 1103 (9th Cir. 2020). In that case,
CitiMortgage failed to introduce evidence supporting a finding of futility. Id. at
1109. In this case, U.S. Bank did make such a showing through a letter
demonstrating the policy of Absolute Collections Services (“ACS”) to reject tender
payments, as well as Rock Jung’s declaration that ACS rejected hundreds of
requests to pay the superpriority amounts.
The district court did not abuse its discretion in considering the materials
supporting U.S. Bank’s court-ordered supplement. See Wong v. Regents of Univ.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2

-- 2 of 3 --

of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). BDJ offers no reason why the Jung
declaration should have been rejected under Federal Rule of Civil Procedure 37(c).
Both Jung and Kelly Mitchell were listed as witnesses in the initial disclosures, and
BDJ did not rely on any testimony of Shane Cox. The failure to disclose certain
exhibits was not prejudicial because they were either not relied on by the district
court or constituted testimony of witnesses who were disclosed.
AFFIRMED.
3

-- 3 of 3 --